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TYOH & ORS v. GOV OF BENUE STATE & ANOR (2020)

TYOH & ORS v. GOV OF BENUE STATE & ANOR

(2020)LCN/15607(CA)

In the Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Tuesday, June 09, 2020

CA/MK/70/2015

 

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

 

Between

HON. TERKAA JUDE TYOH & 76 OTHERS APPELANT(S)

And

GOVERNOR OF BENUE STATE & ANOTHER RESPONDENT(S)

 

RATIO:

COMPETENCY OF JURISDICTION AND MISCARRIAGE OF JUSTICE.

Nevertheless in the case of Alims Nigeria Limited V UBA (2013) 6 NWLR (Pt. The 1351) 613, 626 Fabiyi, JSC, opined as follows:
“Where there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction, the judex has the duty to raise it suo motu, if the parties fail to draw the attention of the Court to it. In such a situation where the judex raises it suo motu, it is proper to invite the address of both counsel before deciding one way or the other. However, failure of the Court to so invite the address of counsel, does not, ipso facto, render such a decision a nullity unless it is shown that the decision is incorrect or occasioned a miscarriage of justice” .JOSEPH EYO EKANEM, J.C.A.

DEFINITION OF JURISDICTION

The position of the law concerning jurisdiction of the Court to adjudicate upon any matter is fundamental in the adjudicatory process. The Supreme Court has posited in a plethora of decisions that jurisdiction is the blood that gives life to the survival of an action in a Court of law without which the action being like an animal drained of its blood, ceases to be alive. Bereft of any blood in it and indeed without life, any effort at resuscitating it remains a futile exercise. See Utih vs. Onoyivwe (1991) 7 NWLR (Pt.166) SIGNATIUS IGWE AGUBE, J.C.A,

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National Industrial Court, Makurdi Judicial Division (the trial Court) in Suit No. NINC/MKD/104/2013 delivered on 21/5/2015 by Waziri Abali, J. In the ruling, the trial Court declined to entertain the suit of the appellants on the ground that their appointment as Supervisors was unconstitutional. It went on to dismiss the suit in its entirety.

Aggrieved by the ruling, the appellants appealed to this Court against the ruling by the means of a notice of appeal filed on 3/6/2015. The notice of appeal incorporates two grounds of appeal.

The facts of the case leading to this appeal may be summarised as follows:
​The appellants claimed that they were appointed as Supervisors with the various 23 Local Government Councils in Benue State and that they served within the period of January, 2008 and December, 2010. They further claimed that they were appointed and served as Supervisors with the 1st respondent. It is their position that they served diligently and faithfully but were not paid their full salary package as fixed by the Revenue Mobilization, Allocation and Fiscal Commission amounting to N18,209,250:00. Rather they were paid N7,312,500:00. The appellants therefore filed a complaint in the trial Court against the respondents claiming as follows:
“a. A DECLARATION that the failure, neglect and or refusal of the defendants to pay the Claimants their full salary package as fixed by the Revenue Mobilization Allocation and Fiscal Commission is wicked, callous, inhumane, unwarranted and smacks of executive highhandedness.
b. AN ORDER of the Honourable Court directing the Defendants to pay Claimants the total sum of One Billion, Two Hundred and Fifty-three Million, One Hundred and Twenty-six Thousand, Two Hundred and Fifty Naira (N1,253,126,250.00) only being the full salary package of the Claimants for the period for which they served the Defendants.
c. GENERAL DAMAGES of Fifty Million Naira (N50,000,000.00) only on the footing of exemplary damages for the gross unwarranted financial hardship, sufferings, embarrassment and psychological traumas caused the Claimants by the Defendants.
d. Cost of prosecuting this suit.
e. 10% interest from date of judgment until the full payment of the judgment debt”.

The respondents did not file a defence to the action, whereupon the trial Court adjourned the case for hearing. At the hearing, the appellants called two witnesses and tendered exhibits A1 – A7 and B1-B7. Cross – examination was foreclosed by the Court as the respondents failed to attend the Court to cross – examine the witnesses. After address by appellants’ counsel, the Court adjourned the matter for judgment. An application by respondents for extension of time to enter their defence was granted but another application for them to reopen the case was refused.

In the course of preparing its judgment, the learned trial Judge felt compelled to and did invite counsel to address him on the competence of trial Court to entertain the claim in the light of Section 7 of the Constitution of Nigeria, 1999 (as amended). Counsel for the parties addressed the Court which, as earlier stated, found that the appointment of the appellants was not constitutional. It consequently declined jurisdiction.

​It needs be stated that the respondents filed a notice to contend that the judgment of the trial Court be affirmed on grounds other than those relied upon by the trial Court. The same was filed on 30/1/2017 but was deemed duly filed and served on 27/9/2017.

At the hearing of the appeal on 17/3/2020, A.O. Aruta, Esq. for appellants, adopted and relied on appellants’ brief of argument which was filed on 26/11/2015 but deemed duly filed and served on 17/11/2016 as well as the reply brief filed on 22/1/2018 but deemed filed and served on 6/2/2018 in urging the Court to allow the appeal.

T.D. Pepe, Esq. for the respondents adopted and relied on the respondents’ brief of argument filed on 30/1/2017 but deemed filed on 27/9/2017 as well as the respondents’ notice and the argument in respect thereof in urging the Court to dismiss the appeal and uphold the respondents’ notice. He submitted orally that the question is whether the Limitation Law of Benue State has repealed the Public Officers (Protection) Law of Benue State. In any event, he contended, even under the Limitation Law, the appellants’ action is statute-barred. He then referred to Omokolo V RMAFC (2017) LPELR and sought to distinguish the same from the instant appeal on the basis that the former involved elected Councilors while the appellants were supervisors.

In the appellants’ brief of argument, the following issues have been formulated for the determination of the appeal:
“1. Whether the appointment of the Appellants as Supervisory Councilors is in violation of Section 7 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and robbing the Honourable Court of jurisdiction to determine the claims of the Appellants. (Distilled from Ground 1 of the Grounds of Appeal).
2. Whether parties addressed the Honourable Court on the constitutionality of the Appellants’ appointment before the lower trial Court ruled on same. (Distilled from Ground 2 of the Grounds of Appeal)”.

In the respondents’ brief of argument, the following issues are distilled for the determination of the appeal:
“1. Whether or not the appointments of the appellants as Supervisors in the 23 Local Government Councils was in violation of Section 7(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) so as to deprive the lower Court of jurisdiction in this matter. Distilled from ground 1 of the notice of appeal.
2. Whether or not the parties had been afforded opportunity of addressing the lower Court on the issue of jurisdiction raised suo motu by the Court before the Court utilized the said issue to determine the appellants’ case. Distilled from ground 2 of the notice of appeal”.

The issues raised by counsel on both sides are essentially the same. I will therefore be guided by the issues formulated by appellants’ counsel since the appellants are the ones who have appealed to this Court.

Before considering arguments and determining the issues, it seems to me to be expedient to consider the respondents’ notice filed by the respondents. This is because it raises issues or points which touch on the competence or jurisdiction of the trial Court. For example, issue of statutory limitation of action has been raised and on the authority of Onadeko V UBN Plc (2005) 4 NWLR (Pt. 916) 440, 460 and Oke V Oke (2006) 17 NWLR (Pt. 1008) 224, 238 – 239, such an issue touches on the competence or jurisdiction of the Court. Whenever the issue of competence or jurisdiction of a Court is raised, it must be dealt with first. See Okorocha V PDP (2014) 7 NWLR (Pt. 1406) 213, 244. In the case of Rahman Brothers Ltd V NPA (2019) 6 NWLR (Pt. 1667) 126, 134 the Supreme Court held that a cross-appeal which raises issue of jurisdiction must be dealt with first before dealing with the appeal. The same position applies to respondent’s notice that raises issue of jurisdiction.

The Respondents’ notice
The respondent’s notice is predicated on five grounds to wit;
(i) that the action of the appellants was statute-barred by virtue of Section 2(a) of the Public Officers Protection Law of Benue State;
(ii) that the Court lacked jurisdiction to grant the reliefs sought as necessary and proper parties were not joined in the suit;
(iii) that the originating process (the complaint) was not signed by the appellants or their legal practitioner in violation of Order 4 Rule 4 (3) of the National Industrial Court Rules, 2007;
(iv) that the suit is inherently self-contradictory and discloses no reasonable cause of action against the appellants; and
(v) that there is/was no employment relationship between the appellants and the respondents so as to vest the lower Court with jurisdiction under Section 254(c)(1) of the Constitution of Nigeria.

Arguing the first ground, respondents’ counsel referred to Section 2(a) of the Public Officers (Protection) Law of Benue State and submitted that as at February, 2008 when salaries were fixed by the Revenue Mobilization, Allocation and Fiscal Commission (RMAFC), the cause of action was complete; that by 22/02/2013 when the appellants wrote their first letter of demand, they had been out of office for more than two years. He noted that the suit was filed nine months after the demand. Thus, he stated, the suit was filed outside the time stipulated in Section 2(a) of the Public Officer (Protection) Law. This, he asserted, rendered the suit statute-barred.

As regards ground (ii), it was his contention that in the absence of the twenty-three Local Government Councils whom he said were the employers of the various respondents, the Benue State House of Assembly, the Government of Benue State and the RMAFC, the action was incompetent for non – joinder of proper parties.

Arguing ground (iii), counsel posited that the originating process in the suit was not signed by the appellants or their counsel, thereby rendering it void ab initio. Reliance was placed on Order 1 Rule 3(2) and Order 6 Rule 1 of the National Industrial Court Rules, 2007.

In respect of ground (iv), counsel argued that while appellants placed reliance on recommendations€ of the RMAFC yet they asserted that the commission had already fixed their salary. He stressed the point that there was no indication that the recommendations had been passed into law by the National Assembly or State House of Assembly. It was his contention that the power of RMAFC to determine remunerations appropriate to certain executive and judicial office holders does not extend to office holders at the Local Government level, legislative or otherwise. It was his view that the appellants can best be described as staff of the local government councils” and not political office holders within the purview of paragraph 32, Part 1, 3rd Schedule to the 1999 Constitution or Section 84, 124 thereof or Section 6(1) of the RMAFC Act.

He argued that the employment of the appellants can only be determined in accordance with the terms of the said employment. Thus, he stated, the failure of the appellants to plead any letter of appointment, the terms of the appointment and conditions of service under which they were employed means that there is no reasonable cause of action. He noted that while asserting that they were supervisors in the Local Government Councils of Benue State, the appellants also asserted that they were employees of the 1st respondent. He submitted that the conflicting assertions created room for doubt.

Before going on, I note that no argument was proffered by respondents’ counsel on ground (V). It was therefore abandoned and I accordingly strike out the same.

For the appellants, it was argued replicando by their counsel that the respondents ought to show how they are public officers shielded by the law. It was further argued that the protection accorded pubic officers under the law is not absolute, that it is not available where the pubic officer acts outside his official, statutory or constitutional duty or where he acts without good faith, abuses his office or acts without legal justification. It was his contention that the law does not apply in cases of recovery of land, breach of contract and claims for work or labour done. It was counsel’s position that appellants’ claim is for work or labour done.

On ground 2, counsel submitted that the presence of the persons set out by respondents’ counsel was not mandatory for the determination of the claim. He stressed that the claim of the appellants was that the Benue State Government whom they served through the various Local Governments failed to pay them their full salary package and allowance. He noted that the Governor of Benue State is the administrative head of the Government of Benue State to which all the persons mentioned by the respondents’ counsel are answerable except the RMAFC, while the Attorney-General is the Chief Legal Officer of the State. He invoked the position of the law that once a principal is disclosed and sued, there is no need to join the agent in the same suit. In any event, he stated, non-joinder does not affect the competence of an action or the jurisdiction of the Court.

In respect of ground 3, counsel submitted that neither the claimant nor his legal practitioner is obligated to sign the complaint but that a complaint is signed and issued by the Registrar of the trial Court. He drew the Court’s attention to Form 1 in the Appendix to the rules of the trial Court and noted that there is no provision for the signature of the claimant or his counsel. Counsel noted that Order 6 Rule 1(2) of the rules of the trial Court which he said requires the signing of an originating process is a general provision whereas Order 3 Rule 1, a specific provision on complaint, does not require the signing of complaint by a party or his counsel. He submitted that a specific provision of a statute or rules prevails over general provisions.

Regarding ground 4, appellants’ counsel argued that the appellants as Supervisory Councilors were members of the Executive at the local government level. Counsel submitted that the issue of whether local government officials are entitled to have their remuneration fixed by the RMAFC was settled by this Court in Hon. Benjamin Omokolo & 3 Ors V Revenue Mobilization, Allocation and Fiscal Commission (unreported decision of the Court in consolidated appeal No. CA/MK/147A/2012 and CA/MK/147B/2012 delivered on 26/5/2017).

It should be mentioned that in his oral reply, respondent’s counsel submitted that the case of Hon. Benjamin Omokolo V Revenue Mobilization, Allocation and Fiscal Commission supra is distinguishable from the instant matter on the basis that the former involved elected Councilors while the appellants were not elected.

Resolution
The contention of the respondents is that the action of the appellants was caught by Section 2(a) of the Public Officers (Protection) Law of Benue State. Section 2(a) provides:
“Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provision shall have effect:
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury within three months next after the ceasing thereof”.
The purpose of the law is to protect public officers in civil liability for any wrongdoing that occasions damage to any citizen, if the action is not instituted within three months after the act, default or neglect complained of. See Yabugbe V Commissioner of Police (1992) 2 NWLR (Pt. 234) 152 and National Revenue Mobilization, Allocation and Fiscal Commission V Johnson (2019) 2 NWLR (Pt. 1656) 247. The law removes the right of action, right of enforcement and the right to judicial relief in a plaintiff if his cause of action arose more than three months preceding the institution of his action. See Osun State Government V Dalami Nig. Limited (2007) 148 LRCN 1311, 1321 and INEC V Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167, 191.
As rightly argued by appellants’ counsel, the law does not apply in cases of recovery of land, breach of contract (generally speaking) and claims for work and labour done. In Osun State Government V Dalami Nig. Limited supra. 1338 the Supreme Court stated that
“It is settled that Section 2(a) does not apply to cases of contract. In the case of Salako V L.E.D.B. (1953) 20 NLR 169, Commarmond SPJ. Held thus:
“I am of opinion that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for the work and labour done etc”. See also Oduko V Government of Ebonyi State (2004) 13 NWLR (Pt. 891) 487, 503 – 504.
To determine the cause of action in a case, reference must be made to the claimant’s writ of summons, the statement of claim and the averments in the statement of claim. See Opia V INEC (2014) 7 NWLR (Pt. 1407) 431, 453. A study of the complaint and statement of facts of the appellants shows that the claim of the appellants is for full payment for work done as Supervisors. This brings their claim outside the clutches of Public Officers Protection Law.

​It was the contention of appellants’ counsel that failure to join the following persons in the suit rendered the suit incompetent, viz; the 23 Local Government Councils in Benue State who were the employers of the claimants, the Benue State House of Assembly which enacted the law under which the appellants were remunerated, the Government of Benue State and the RMAFC, which allegedly fixed the salaries of the claimants.
In the famous case of Green V Green (2001) FWLR (Pt. 76) 795, also reported in (1987) 3 NWLR (Pt. 61) 480, it was held by the Supreme Court that a plaintiff who conceives that he has a cause of action against a particular defendant is entitled to pursue his remedy against that defendant only and should not be compelled to proceed against other persons whom he has no desire to sue. It was further held that necessary parties are those who not only are interested in the subject matter of the proceedings but also who in their absence the proceedings cannot be fairly dealt with. In other words, the question to be settled in the claim between the existing parties must be a question which cannot be properly settled unless they are parties to the action.
​The case of the appellants is that the respondents are responsible for payment to them of their salaries for work done by them as Supervisors and that the respondents only made Part Payment to them of their entitlement. The question raised by the claim of appellants can be properly settled without the need to join the persons listed by respondents’ counsel. The law is that persons need not be joined as parties in a suit where there is no claim against them. See Ekrebe V Efeizomor II(1993) 7 NWLR (Pt. 307) 588, 601. The appellants have no complaint against the 23 Local Government Councils of Benue State; they do not assert that the Councils are bound to pay them their salaries. The statement by respondents’ counsel that the twenty-three Local Government Councils were their employers or appointing authorities runs counter to the question raised by him as follows:
“The question is, does the appointment of the appellants by the Governor fall within the purview of Section 7(1) of the 1999 Constitution?”– Page 5; par 4.1.5 of respondents’ brief of argument.
See also page 4 par. 4.1.3. and page 6 par 4.1.7 of the said brief where respondents’ counsel asserts that the case of the appellants is that they were appointed by the Governor of Benue State. Respondents’ counsel was, with due respect, blowing hot and cold at the same time. That is not permissible in law.
The RMAFC is not a necessary party as its power to fix salaries is not being challenged by the appellants. The appellants have no complaint against it. The appellants need not join the Benue State Government since they have sued the respondents, viz; the Governor of Benue State and the Attorney-General of Benue State. The Governor is the head of the Government of Benue State while the Attorney-General is the Chief Law Officer of the State. It is one of the functions of the Attorney-General to prosecute or defend matters for or against the Government and reference to him in the suit is reference to the Government of his State. See Attorney-General of Rivers State V Attorney-General of Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31, 125. He is basically responsible for the actions or inactions of the government. SeeErokoro V Government of Cross River State (1991) 4 NWLR (Pt. 185) 322, 336, Ibrahim V JSC (1998) 14 NWLR (Pt. 584) 1, 33 and Attorney-General of the Federation V Ajayi (2000) 12 NWLR (Pt. 682) 509, 531.
It was therefore not necessary to join the persons listed by respondents’ counsel in the suit.
​Finally, it must be stated that non-joinder of a person in a suit does not by itself defeat the suit and render the Court incompetent. It suffices if the parties before the Court are competent. Order 13 Rule 14(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, provides that
“No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before the Court”.
In Sapo V Sunmonu (2010) all FWLR (Pt. 531) 1408), 1426, the Supreme Court held that:
“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every cause or matter deal with the matter in controversy as far as regards the right and interest of the parties actually before it. It is the undisputed right of a Plaintiff to choose the person against whom he wishes to proceed against”.
See also Cross River Newspaper Corporation V Oni (1995) 1 SCNJ 218, 238, Babayeju V Ashamu (1998) 61 LRCN 4225, 4243, Enterprise Bank Ltd V Aroso (2014) 3 NWLR (Pt. 1394) 256, 292 and Azuh V Union Bank of Nigeria Plc (2014) 11 NWLR (Pt. 1419) 580, 610.
​I therefore discountenance the submission of respondents’ counsel in respect of alleged non – joinder.

Turning to ground 3 of the respondents’ notice, the grouse of the respondents’ counsel is that the complaint which originated the suit was not signed by the appellants or their counsel in violation of Order 6 Rule 1 of the rules of the trial Court.
Order 6 Rule 1 (1) and (2) of the 2007 Civil Procedure Rules of the trial Court provides:
“(1) A claimant or counsel shall on presenting any originating process for filing and sealing, leave with the Registrar as many copies of the process as there are defendants or respondents to be served and copy for endorsement of service on each defendant or respondent.
(2) Each copy shall be signed by the claimant suing in person or by the counsel otherwise and shall be certified after verification by the Registrar as being a true copy of the original process filed”.
By Order 3 Rule 1(1)(a) of the same rules, civil procedure in the Court may be commenced by, inter alia, complaint as in Form 1. There is no doubt that a complaint as in this instance is an originating process and therefore falls under the provision of Order 6 Rule 1(1) and (2) of the Rules. It is a cardinal rule of interpretation of statute or rules that where the provisions are clear and unambiguous, the duty of the Court is to simply interpret the clear provisions by giving plain wordings their ordinary interpretation without more. See Abacha V Federal Republic of Nigeria (2014) 6 NWLR (Pt. 1402) 43, 92 and Action Congress V Osun State Independent Electoral Commission (2009) 12 NWLR (Pt. 1155) 223, 249.
​Order 6 Rule 1(1) and (2) set out above is clear and unambiguous. It imposes a duty on a claimant or his counsel, on presenting any originating process for filing and sealing, to leave with the Registrar as many copies of the process as there are defendants or respondents for purpose of service and one copy for endorsement of service on each defendant or respondent. Rule 1(1) contemplates the presentation of two sets of documents, viz; the file or original process, meant for the Court’s file and copies thereof for service and one copy for endorsement of service. Rule 1(2) provides that each such copy shall be signed by the claimant, if he sues in person, or by his counsel. A literal interpretation of the said rules would tend one to hold that it is not the requirement of Rule 1(2) that the original originating process be signed by the claimant or his counsel but rather that it is the copies meant for service and endorsement of service that are required to be signed by the claimant or his counsel. However that would be in disregard to the position of the Supreme Court on the signing or authentication of originating processes. The position of the apex Court must serve as the beacon for the interpretation of the rules.
In the case of Okarika V Samuel (2013) 7 NWLR (Pt. 1352) 19, 43 Peter – Odili, JSC, held that:
“The full Court of the Supreme Court held firmly and following in the footsteps of Okafor V Nweke (2007) 3 SCNJ 185, (2007) 10 NWLR (Pt. 1043) 521 that once the initiating process, be it writ of summons or notice of appeal is not signed or authenticated either by the litigating party or the legal practitioner on his behalf then that process is invalid and the jurisdiction of the Court ousted. The defect is taken as incurable…” This Court has taken the same view as demonstrated in the following cases, to wit; Keystone Bank Ltd V J.O. Adebiyi & Sons (Nig) Ltd (2015) 1 NWLR (Pt. 1439) 98, 111 and Sun Publishing Ltd V Leaders & Co. Ltd (2016) 7 NWLR (Pt. 1510) 1, 7.
There is no doubt that the writ of summons that began the suit the subject of this appeal was not signed by the appellants or their counsel. It rendered the process incompetent and ousted the jurisdiction of the Court.
I therefore find merit in ground 3 of the respondents’ notice.

The argument of respondents’ counsel under ground 4 goes to the merit of the appeal and so it ought to be taken after the consideration of the substantive appeal, if necessary.
The respondents’ notice particularly in regard to ground 3 succeeds and I uphold the same. Grounds 1 and 2 thereof fail and are dismissed.
Not being a final Court, I shall proceed to consider the appeal on its merit.

The Appeal
The issues for the determination of the appeal have already been identified in this judgment. Counsel for the appellants argued the two issues together. He referred to Section 7(1) of the Constitution of Nigeria, 1999 (as amended) and submitted that it provides for the mode and system of government at the local government, viz; democratic system. He posited that in every democracy there are the executive, the legislative and the judicial arms. Unlike the legislative arm where every member must be elected, he posited, in the executive arm, only the heads must be elected. Thus, he submitted, Supervisory Councilors do not require election but appointment to constitute the executive council at the local government level. Counsel referred to Section 31(1) and (2) of the Local Government Law and submitted that it permits the appointment of supervisors. He stressed that the appellants were appointed supervisors in a democratic setting. He posited that the appointment of the appellants was therefore not unconstitutional and therefore did not rob the Court of jurisdiction.

​He referred to Section 7(1) of the National Industrial Court Act, 2006 and argued that the subject matter of appellants’ case relates to labour and so the Court which was properly constituted had jurisdiction. In any case, he added, the issue before the trial Court was not the system of government in operation but the refusal of the respondents to pay the appellants their full entitlement according to law.

Apparently arguing issue 2, counsel submitted that the parties did not address the trial Court on the constitutionality of appellants’ appointment before it considered the same and ruled on it. He posited that the trial Court was vague and not explicit on the issue of jurisdiction raised suo motu. Counsel stated that the issue of constitutionality or otherwise of appellants’ appointment was unfounded and unnecessary. He then urged the Court to grant the claims of the appellants on the authority of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rule 3 of the Court of Appeal Rules, 2011.

On his part, respondents’ counsel arguing issue 1, submitted that the jurisdiction of the trial Court conferred by Section 254C(1) of the Constitution is hinged on the existence of a valid employment. Thus, he posited, the trial Court was right in first ascertaining the validity of the employment relationship asserted by the appellants. He referred to paragraphs 3 and 5 of the statement of facts and contended that though the appellants did not plead, frontload or tender any letter of appointment in evidence, it was clear that they were saying that they were appointed by the 1st respondent.

Counsel submitted that by Section 32 of the Local Government Law, 2007, it is clear that appointment to the office of supervisor is to be made by the Chairman of a Local Government Council and not the Governor. Again, he argued, Section 7(1) of the Constitution does not envisage the appointment of Supervisors by the Governor and that such an appointment would be unconstitutional. He posited that for the trial Court to have jurisdiction under Section 254C(1) of the Constitution, the employment must be valid and enforceable. In his view, since the employment of the appellants was unconstitutional, the trial Court was right in declining jurisdiction.

Regarding issue two, counsel contended that the trial Court had invited parties to address it on the constitutionality of appellants’ appointment. He urged the Court to dismiss or strike out ground 2 and issue 2 distilled from it as they are contrary to the record of appeal. Counsel observed that it was to squeeze their appeal into the category of appeal as of right under Section 243(2) and (3) of the Constitution that the appellants raised ground 2 on lack of fair hearing. He urged the Court to dismiss the issue.

In his reply, appellants’ counsel submitted that the appellants never claimed to have been appointed by the 1st respondent.

Resolution
I shall start by first treating issue 2 as it raises the issue of fair hearing. In the course of preparing its ruling, the learned trial Judge found it necessary to invite the parties to address it on an issue which he considered to be important. At page 172 of the record of appeal, the learned trial Judge addressed counsel on both sides as follows:
“Going through the process filed in this suit, I have come to the conclusion that, it will be necessary for the Court to be addressed on whether the Court has jurisdiction to hear this suit taking into consideration the provisions of Section 7 of the 1999 Constitution”.
Counsel for the appellants filed an address on the point while respondents’ counsel filed an address which did not address the point raised suo motu by the Court. It is a trite position of the law that the judgment of a Court must be confined to the issues raised by the parties. The Court is not competent to suo motu raise an issue and decide on it without affording the parties an opportunity to be heard. See Kuti V Balogun (1978) 1 SC 53, 60, Okere V Amadi (2005) All FWLR (Pt. 629) 1925, 1934 and Sani V Kogi State House of Assembly (2019) 4 NWLR (Pt. 1661) 172, 185. An issue of jurisdiction can be raised at any stage of a case by any of the parties or by the Court suo motu, as in this instance, provided it gives the parties an opportunity to be heard. See Lado V Congress for Progressive Change (2011) 18 NWLR (Pt. 1279) 689, 718-717.
In the instant matter, the trial Court suo motu raised the issue of jurisdiction based on Section 7 of the Constitution of Nigeria and it invited the parties to address it on the issue. The complaint of the appellants is that the trial Court did not specifically ask their counsel to address it on the constitutionality or otherwise of their appointment which formed the basis of its ruling. I have already set out the issue raised by the Court suo motu. The lower Court invited addresses generally on the issue of jurisdiction in the light of Section 7 of the Constitution which in sub-section 1 guarantees the system of local government by democratically elected local government council. It did not specifically ask the parties to address it on the constitutionality of the appointment of the appellants upon which it based its decision.
Fair hearing in a judicial or quasi-judicial body includes, inter alia, the right to know the case a party has to meet at the hearing. See Baba V Nigerian Civil Aviation (1991) 5 NWLR (Pt. 192) 388, 423 and Danladi V Dangiri (2015) 2 NWLR (Pt. 1442) 124, 198. The trial Court ought to have asked the parties to address it on the constitutionality of the appointment of the appellants and not generally and vaguely on its jurisdiction vis-a-vis Section 7 of the Constitution. It is no wonder then that all through his address, appellants’ counsel did not touch on the constitutionality of their appointment. The trial Court therefore erred in this regard.
In general view of the Courts is that where a party’s right to fair hearing has been breached, the hearing becomes a nullity. Nevertheless in the case of Alims Nigeria Limited V UBA (2013) 6 NWLR (Pt. The 1351) 613, 626 Fabiyi, JSC, opined as follows:
“Where there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction, the judex has the duty to raise it suo motu, if the parties fail to draw the attention of the Court to it. In such a situation where the judex raises it suo motu, it is proper to invite the address of both counsel before deciding one way or the other. However, failure of the Court to so invite the address of counsel, does not, ipso facto, render such a decision a nullity unless it is shown that the decision is incorrect or occasioned a miscarriage of justice”.
In Ibekwe V Imo State Education Management Board (2009) 5 NWLR (Pt. 1134) 238, 256, Garba, JCA, in his contribution opined, regarding failure to hear a party on an issue raised suo motu by the Court that;
“The current attitude and position is that it is only where a miscarriage of justice was occasioned by such failure or omission would it be fatal.”
See also Odutola V Oderinde (2004) 12 NWLR (Pt. 888) 524, 586 – 587 and Effiom V Cross River Independent Electoral Commission (2010) 14 NWLR (Pt. 1213) 106, 133.

In this appeal, the appellants’ counsel has urged this Court to proceed to grant the reliefs sought by them at the trial Court. I shall therefore consider if the trial Court was wrong in its decision that it had no jurisdiction or if a miscarriage of justice was occasioned the appellants.

The contention of the appellants, it needs be re-stated, is that they were appointed as Supervisors with the twenty-three local government councils in Benue State and that they served between January, 2008 and December, 2010; that their appointment was pursuant to Section 31 of the Local Government Law of Benue State; that there existed both a democratically elected legislature comprising elected councilors and the supervisors and as such there was a democratic system of government in operation at the material time. Thus, they posited, their appointment was not unconstitutional and as such the trial Court was not robbed of jurisdiction.

​Respondents’ position is that the constitutionality or otherwise of appellants’ appointment as supervisors was relevant to determination of whether or not the appellant had a valid or enforceable cause of action. It was submitted that jurisdiction of the trial Court conferred by Section 254(C)(1) of the Constitution is hinged on the existence of a valid employment.
A Court is competent when;
(a) It is properly constituted as to number and qualification of members of the bench and no member is disqualified for one reason or another;
(b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu V Nkemdilim (1962) 2 SCNLR 341 and Shell Petroleum Development Company of Nigeria Ltd V Agbara (2016) 2 NWLR (Pt. 1496) 353, 391-392.
Jurisdiction is the authority or power of a Court to adjudicate over a cause or matter brought before it for resolution or take cognizance of matters presented before it in a formal way. A Court of law being a creation of the Constitution or statute can only exercise the jurisdiction conferred on it by the law that created it. See National Bank V Shoyoye (1977) 5 SC (Reprint) 110 and Nduul V Wayo (2018) 16 NWLR (Pt. 1646) 548.

The National Industrial Court is created by Section 254(A)(1) of the Constitution of Nigeria, 1999 (as amended). Its jurisdiction is set out in Section 254(C) of the Constitution. In particular, Section 254(C)(1)(a) and (k) clothes it with exclusive jurisdiction in civil cases and matters,
“(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

(k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto”.
The claim of the appellants apparently falls under Section 254(C)(1)(k) supra. It is however my view that the jurisdiction of the National Industrial Court in matters falling under sub-section (1)(a) and (k) can only be invoked where there is a valid, lawful and enforceable contract of employment. In this regard, the learned trial Judge raised some questions at page 164 of the record thus:
“Agreeing that the matter is labour – related and initiated by due process of law, the ultimate question is whether or not this Court can entertain a suit which its claim is predicated upon an unconstitutional act? Is the appointment of the claimants not glaringly contrary to the provisions of the Constitution on democratically elected local government council?”
The learned trial Judge concluded as follows at page 165 of the record:
“The said appointment being inconsistent with the provisions of Section 7(1) of the Constitution is found to be unconstitutional to the extent of that inconsistency. It is the supreme responsibility of this Court to uphold the provisions of the Constitution. Thus the Court would decline to entertain any suit flowing from an act that is unconstitutional and I so hold”.
Section 7(1) of the Constitution states that:
“The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly the Governor of every State shall, subject to Section 8 of this Constitution ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils”.
The learned trial Judge seemed to have been of the view that the appellants were appointed by the 1st respondent, the Governor of Benue State which he held was contrary to Section 7(1) of the Constitution.
I have read closely the statement of facts of the appellants in the lower Court. I shall set out the relevant paragraphs thereof, viz; paragraphs 1, 3 and 5.
“1. The Claimants were appointed Supervisors with the various 23 Local Government Councils in Benue State and did serve within the period of January 2008 to December, 2010. They all reside within the jurisdiction of this Honourable Court.
3. The Claimants aver that they were appointed and served Supervisors with the 1st defendant between the period of January, 2008 to December, 2010 when their tenure ended.

5. That the Claimants did diligently and faithfully discharged their duties and responsibilities to the various Local Government Councils where they served the Benue State Government”.
It is not clearly stated who appointed the appellants to serve as Supervisors. This fact is very material in this matter. Order 30 Rule 3(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules provides that
“Every pleading shall contain a statement in summary form of the material facts on which the party pleading relies for the party’s claim…”
Thus a pleading must contain material facts and must be detailed and comprehensive on material facts and not evasive. See Sodipo V Ogidan (2008) 4 NWLR (Pt. 1077) 542, 368 and Akande V Adisa (2012) 15 NWLR (Pt. 1324) 538, 574. Material facts are those facts that are necessary to establish a cause of action or defence of it. See Philips V Philips (1898) 4 (1) BD 127. As stated in Nwadialo’s Civil Procedure in Nigeria 2nd edition page 316;
“The material facts, in the case of a statement of claim, are those necessary for the purpose of formulating a cause of action, and if any one of such fact is omitted, the statement of claim is bad.”
The materiality of who appointed the appellants is found in the provision of Section 7(1) of the Constitution and Section 32(2) of the Local Government Law 2007 of Benue State. The latter provides:
“(2) The Chairman shall within thirty days of taking Oath of Office, appoint persons not being elected councilors, to hold office as Supervisors and such appointment shall be subject to confirmation by the Legislative Council”.
​The Local Government Law was made pursuant to Section 7(1) of the Constitution. By Section 32(2) of the said law, it is the Chairman of a Local Government who shall appoint persons to the office of supervisor subject to confirmation by the Legislative Council of the Local Government. If a person is appointed a supervisor by another person or authority including the Governor, he cannot constitutionally and lawfully claim to be a Local Government Supervisor. Such a person cannot claim in that capacity in a Court of law for remuneration on the basis of salaries fixed by the RAMFC. It therefore was material for the appellants to show who appointed them. There is no pleading on the point nor did the appellants tender their Letter of appointment to show who appointed them.
Even if the Court were to interpret the pleadings of the appellants with over liberality, the best that can be inferred from it is that the appellants were appointed as supervisors by the 1st respondent (the Governor of Benue State). That would be in breach of the Constitution and the law.
A claim that a party is/was a political officer holder and is therefore entitled to remuneration prescribed by the RMAFC must be founded on a proper appointment, whether by election or appointment to office by the right authority. Where that is not the case, the claim of such a party cannot be founded on the prescription of the RMAFC but may be founded on some other consideration. That is the bane of the case of the appellants.
The trial Court was therefore right in declining jurisdiction. No miscarriage of justice was occasioned to the appellants.
I therefore enter an affirmative answer to issue 1 and a negative answer to issue 2.

​On the whole and in the light of what I have stated thus far, I find no merit in the appeal. I accordingly dismiss the same and affirm the judgment of the trial Court.
The parties shall bear their costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the Lead Judgment delivered by my learned Brother, Hon. Justice J.E. Ekanem, JCA. I agree with the reasoning and conclusions reached in the lead Judgment.

The position of the law concerning jurisdiction of the Court to adjudicate upon any matter is fundamental in the adjudicatory process. The Supreme Court has posited in a plethora of decisions that jurisdiction is the blood that gives life to the survival of an action in a Court of law without which the action being like an animal drained of its blood, ceases to be alive. Bereft of any blood in it and indeed without life, any effort at resuscitating it remains a futile exercise. See Utih vs. Onoyivwe (1991) 7 NWLR (Pt.166) 166; Usman vs. Umaru(1992) 7 NWLR (Pt.254) 377 and the recent Supreme Court cases of Emejuru vs. Abraham (2019) 4 NWLR (Pt. 1663) 541 at page 560 paragraphs B-C; page 567 paragraphs A-B, page 568 paragraph B. per Galumje, Peter-Odili, and Sanusi, JSC.
​Where a Court has no jurisdiction to entertain and determine a Suit, the best course of action is to decline jurisdiction and to further hold that the claim was not initiated by due process upon the fulfillment of all conditions precedent. See Madukolu & Ors. vs. Nkemdilim (1962) 1 All NLR 587 at 595 and Laniyan vs. Dadeowo & Ors. (1971) All NLR 169 at 172-173. Where the Court has no jurisdiction the proper order is to strike out the application or Suit. See Niger Leather Works Ltd. vs. Voss (1977) NNLR 220; Ajayi vs. Oduasi (1959) 4 FSC 189 and Fasakin vs. Shosanya (2006) 4 SCNJ 229 at 240. Jurisdiction must be vested in a Court before the rights of the parties may be determined. See Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76 at 90. Where a Court has no jurisdiction it cannot make binding orders. See Nyarko vs. Akowuah 14 WACA 426.

For these reasons and the fuller reasons in the lead Judgment, I also find no merit in the Appeal and same is hereby dismissed. I affirm the decision of the trial Court.
Parties to bear their respective costs.

ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph E. Ekanem, JCA, made available to me in advance, a draft copy of the Judgment just delivered in which this appeal has been dismissed. The resolution of the issues arising for determination have been fully considered and resolved, and, I adopt same as mine.
I therefore also dismiss this appeal and abide by the orders made in the lead Judgment.

Appearances:

A.O. Aruta, Esq. For Appellant(s)

T.D. Pepe, Esq., with him, O.N. Nor, Esq. For Respondent(s)